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They’re coming for your DNA

Scientists work in a lab at Vitrology Biotech Co. in Clydebank, Scotland.

By Emily Bazelon, Slate

Posted June 04, 2013, at 8:08 a.m.

DNA analysis is the major crime-solving advance of our time. It’s the science behind many exonerations, and many more guilty pleas. It’s far more accurate than fingerprinting or eyewitness identification. So the more DNA collection, the better, right?

Federal prosecutors and 28 states have answered yes to that question by routinely collecting DNA samples from arrestees. On Monday, the Supreme Court approved Maryland’s DNA law, ushering in a new era of massive double-helix collection. There are two oddities about the court’s 5-to-4 ruling. The first is that the majority pretended that this decision had little to do with solving crimes. The second is the lineup: The dissent is a smoking Scalia special—and he’s joined by Justices Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor rather than the court’s conservatives. Anthony Kennedy picked off Stephen Breyer (along with Clarence Thomas, Samuel Alito, and John Roberts) to eke out a majority. But it’s Scalia who wins the argument.

Here are the background facts: All 50 states collect DNA from people who have been convicted of crimes, and that’s not what’s at issue here. Instead, we’re talking about whether the states can widen their databases of genetic material to include people who have been arrested and not yet found guilty. Kennedy presents this as merely a basic booking procedure. It’s like fingerprinting, he says, and “the legitimate government interest” is “the need for law enforcement officers in a safe and accurate way to process and identify the persons and posses­sions they must take into custody.” It’s a simple matter of allowing the police to make sure they know whom they’ve got, and alerting judges about whether the person who has been arrested has a record, so they can take that into account in deciding whether to release him on bail.

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Kennedy is also unconcerned about the level of intrusion. Cheek swabs count as a search under the Fourth Amendment, which protects us all from unreasonable searches and seizures. But since swabbing is minimally intrusive, it’s no big deal. The majority also dismisses the privacy concerns that come with DNA collection: “The argument that the testing at issue in this case reveals any private medical information at all is open to dispute,” Kennedy says.

Has Kennedy never watched a TV crime show? That is basically Scalia’s opening question, in an opinion he felt strongly enough about to read from the bench—not the standard practice. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous,” he writes. Then he decimates Kennedy’s discussion of booking and bail with a few obvious and unchallenged facts: It took weeks to test the DNA of Alonzo King, the arrested man who challenged Maryland’s DNA collection law, and months for the samples to come back from testing. By then, booking, arraignment, and bail were long over. “Does the Court really believe that Maryland did not know whom it was arraigning?” Scalia asks. “The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.” Nor is Maryland particularly slow relative to the other states—in fact, it’s perhaps a bit faster.

Why did Kennedy write his opinion in a way that makes him sound like the last guy on Earth to discover Law & Order? Because the Supreme Court has never held that if the police have probable cause to make an arrest, they can also search a suspect for evidence of past or future crimes. Think about it for a second: Should getting arrested because you’re the suspect in one burglary mean the police can go search your house, without a warrant, on the theory that you might have stolen additional property? If the real purpose of taking DNA from someone who has been arrested is to match his profile against the national database of unsolved crimes, then the court would have to admit to making a big and unprecedented move—one that allows the government to ensnare more and more of us in a thickening web of our own data. Law enforcement over liberty, by a wide margin.

Scalia doesn’t belabor the privacy costs, though he could. It’s disingenuous to compare DNA collection to fingerprinting, given the additional information it conveys about sex, age, and details of physical appearance. Scalia, though, is largely offended as a believer in originalism—the theory that the founders’ understanding of the constitution should be our understanding. Scalia speaks for them, and he is sure this is not what they had in mind. “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school,” Scalia writes. “Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” This argument apparently didn’t convince Clarence Thomas, who often shares Scalia’s originalist bent, or Samuel Alito or Chief Justice John Roberts, who do more rarely. As for Breyer, he has generally counseled judges to be cautious about striking down state laws relating to privacy, plus he has been all over the map about the Fourth Amendment.

What if you care less about the history and more about the present? That’s probably the case for the liberal-moderate justices who joined Scalia, and here’s what should worry them, from University of Virginia law professor Brandon L. Garrett and New York University law professor Erin Murphy. First off, at least 12 million people are arrested each year in this country. Garrett and Murphy write that “according to one study, by age 23, nearly one-third of Americans have been arrested for an offense, not including minor traffic violations.” Maryland’s law restricts DNA collection to people charged with committing or attempting a violent crime, or with burglary. But as Scalia points out, the majority’s opinion doesn’t really require other states to stay within those limits. “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” the dissent warns. Maybe five members of the court won’t actually be willing to go this far, but it’s hard to say why based on Monday’s ruling.

Garrett and Murphy also argue that building a Giant Genetic Panopticon is not the path to solving more crimes. What would help the police most is more DNA evidence from crime scenes, they argue, not from people who are arrested. Here’s their evidence:

“States like California, which vastly expanded DNA databanks to include arrestees, do not generate dramatically more matches between offenders and crime scenes than do states with much smaller databases, like New York or Illinois. That is because New York and Illinois, despite the smaller numbers of offenders in their databases, enter crime scene samples at rates comparable to California. Indeed, from 2010 to 2012, California halved the average number of offender profiles uploaded per month, but kept the number of samples from crime scenes constant. The result was an increase in database hits. The same dynamic played out in the United Kingdom. The lesson is clear: The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.”

Why is this? Because you can’t solve a crime without physical evidence pertaining to that crime, and that’s not what you get when someone is arrested somewhere else for doing something different. The police are good about collecting physical evidence in cases of murder and rape. But for other serious crimes, including robbery and assault, they’re doing this kind of collection in only two cases out of 10.

To suggest that the state laws the court approved Monday will help catch certain villains who are arrested for unrelated reasons, Kennedy cites Timothy McVeigh, who was pulled over for driving without a license plate after the Oklahoma City bombings. In theory, in a world in which DNA results come back from the lab much faster than the one we live in, upon arrest McVeigh’s DNA could have been matched with DNA collected at the scene, connecting him to the crime. In practice, McVeigh was found through good old-fashioned legwork: The police discovered the axle of the truck he’d driven to the bombings, which they traced to a Kansas body shop, where employees helped them put together a sketch that hotel clerks identified as McVeigh. The cops didn’t need DNA to tell them that was the same guy who’d been pulled over—they already had his name.

Surely the wave of DNA collection that the court unleashed Monday will catch some future McVeigh. But processing all that information may gum up the works, proving overall to be a big and misguided distraction. This is the kind of cumulative cost that’s harder to see. But you might expect the Supreme Court to take it into account before letting the government file away the genetic coding of millions of people it hasn’t proved have done anything wrong.